Honolulu – First Circuit Court Judge Jeff Crabtree has granted a request to expedite a hearing on a Motion for Preliminary Injunction filed by the City and County of Honolulu, the County of Hawaiʻi, the County of Kauaʻi, and the County of Maui. The Motion seeks “to prevent an improperly proposed, misleading, and deceptive ballot question for constitutional amendments from being placed on the ballot for the November 6, 2018, general election.” The court’s ruling of Tuesday, September 4, is attached.

The hearing on the counties’ Motion for Preliminary Injunction will be heard in Judge Crabtree’s courtroom on Friday, September 7, at 1:30 p.m., at Kauikeaouli Hale, 1111 Alakea Street, Courtroom 5C, Honolulu, Hawai‘i.

State Attorney General Russell Suzuki opposed the city’s request to expedite the hearing arguing that the counties could challenge the amendment after the general election.

Honolulu Corporation Counsel Donna Leong said:

“The counties filed this lawsuit because the Legislature’s proposed ballot question and the state office of elections’ proposed title do not inform the voters of the most significant effect of the proposed amendment – that the Legislature seeks a new taxation power through real property taxes. This is a power that it does not currently have. On such an important issue, the city believes it is important that the ballot question must be clear so that the voters are aware of the consequences of their vote.”

After amended complaints were filed, the state Office of Elections said the ballot will not have a title.

Leong added:

“Since 1978, the Hawaiʻi State Constitution has given the counties the exclusive power to tax real property within their county. This is the only source of tax revenue that the counties have available to them. Now, in addition to the state Legislature’s other sources of tax revenues, such as the general excise tax and the transient accommodations tax, the Legislature also wants to be able to impose taxes on investment real property throughout the state. The state’s proposed real property taxes would be in addition to the counties’ real property taxes. While Senate Bill 2922, S.D. 1, H.D. 1, refers to a ‘surcharge,’ the surcharge is in actuality an additional taxing power that the Legislature seeks to give to itself.”

The ballot question proposed by the state legislature in SB 2922, S.D.1, H.D.1 is as follows:

“Shall the legislature be authorized to establish, as provided by law, a surcharge on investment real property to be used to support public education?”

The title for the proposed ballot question drafted by the state Office of Elections is: “CON AMEND: Relating to Public Education and Investment Property.”

“State law requires ‘the language and meaning of a constitutional amendment [to] be clear and … neither misleading nor deceptive,’” said Leong. “Here, the question is misleading and deceptive. The ballot question, by referring only to ‘a surcharge on investment real property … to support public education’ gives the same misimpression. These impressions are different from the true one, which is to give the state Legislature another taxing power.

“The proposed ballot question does not define “investment property,” which could be applied to all types of real property. Even owners who hope their homes will appreciate in value over time could face the prospect of being assessed real property taxes by the Legislature, over and above the counties’ current real property tax.”